Fax to Co-Counsel from Cox RE: Motion to Dismiss or Affirm with Cover Sheet

    (Emtrt of %  Inttefc
October Teem, 1966 

No..................

In the

Gilbert R. Mason, et al.,

— y .—
Petitioners,

City oe B iloxi, Mississippi.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF MISSISSIPPI

J ack Greenberg 
J ames M. Nabrit, III  
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

R. Jess B rown
125% North Farish Street 
Jackson, Mississippi 39201

Attorneys for Petitioners



I N D E X

PAGE

Opinion B elow ...................................................................... 1

Jurisdiction .......................................................................... 2

Question Presented ............................................................ 2

Constitutional and Statutory Provisions Involved.......  3

Statement .............................................................................  10

How the Federal Questions Were Raised and Decided 
B elow .................................................................................  14

Reason for Granting the Writ ......................................  15

The Decision Below Approves Enforcement of a 
State-Supported Policy of Racial Discrimination 
in Facilities Which Are Significantly Impressed 
With Federal, State and Local Financial Contribu­
tions, Programs and Policies and Conflicts With 
Decisions of This Court ..........................................  15

Conclusion- ...........................................................................  22

A ppendix

Judgment of Supreme Court of Mississippi .......  la

House Document No. 682, 80th Cong., 2nd Sess.....  2a



11

T able oe Cases:
PAGE

Barrows v. Jackson, 346 IT. S. 249 (1953) ....................... 19
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) .......................................................................  16

Carter v. Texas, 177 U. S. 442 (1900) ..........................  21
City of New Orleans v. Barthe, 376 IT. S. 189 (1964) .. 19 
Coleman v. Alabama, 377 U. S. 129 (1964) ..................... 21

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ........... 16
Evans v. Newton, 382 U. S. 296 (1966) ...............16,19, 20

Griffin v. Maryland, 378 IT. S. 130 (1964) ................... 19

Harrison County v. Guice, 244 Miss. 95, 140 So. 2d 838
(1962) ..............................   11,13

Holmes v. City of Atlanta, 350 IT. S. 879 (1955) ....... 19

Marsh v. Alabama, 326 U. S. 501 (1946) ....................... 16
Mayor and City Council of Baltimore v. Dawson, 350 

IT. S. 877 (1955) .............................................................. 19

New Orleans Park Association v. Detiege, 358 IT. S.
54 (1958) ........................    19

Shelley v. Kraemer, 334 IT. S. 1 (1948) ..........................  19
Simkins v. Moses H. Cone Memorial Hospital, 323 F.

2d 959 (4th Cir. 1963), cert, denied, 376 IT. S. 938
(1964) ............................................   15,16

Smith v. Holiday Inns of America, Inc., 336 F. 2d 
630 (6th Cir. 1964) .....................    16

United States v. Harrison County, S. D. Miss. No. 2262 11



Ill

PAGE

Watson v. Memphis, 373 U. 8. 526 (1963) ....................... 19
Wright v. Georgia, 373 U. S. 284 (1963)   ................. 19

S t a t u t e s :

28 TJ. S. C. §1257(3) .......... .............................................  2

Act of August 13, 1946, Public Law 727, 79th Cong.,
2nd Sess., 60 Stat. 1056 ..............................................3,16

Act of June 30, 1948, Public Law 858, 80th Cong., 2nd 
Sess., 62 Stat. 1172 ........................................................4,17

Miss. Code Ann., 1942, Rec., §2409.7 (1964 Supp.) .....6,13

Miss. Code Ann., 1942, Rec., §4065.3 ................................ 7, 20

Miss. Code Ann., 1942, Rec., §8516.3.................................. 4,18

Miss. Code Ann., 1942, Rec., §8516.4..............................  18



Isr the

(Enurt xrf tlu InitTft States
October Term, 1966 

No..................

Gilbert R. Mason, et al.,

—v.-
Petitioners,

City of B iloxi, Mississippi.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF MISSISSIPPI

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Mississippi entered 
in the above-entitled case on March 21, 1966. Rehearing 
was denied on April 11, 1966.

Opinion Below

The judgment of the Supreme Court of Mississippi is 
reported at 184 So. 2d 113 and is set forth in the Appendix, 
infra, p. la. No opinion accompanied that judgment or the 
denial of rehearing.



2

Jurisdiction

The judgment of the Supreme Court of Mississippi was 
entered on March 21, 1966 (E. 734); rehearing was denied 
April 11, 1966 (E. 735).

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1257(3), petitioners having asserted below and 
asserting here deprivation of rights, privileges and im­
munities secured by the Constitution of the United States.

Question Presented

A  beach 24 miles in length has been constructed along the 
coast of the State of Mississippi with federal, state and 
local funds, pursuant to governmental programs and poli­
cies designed to promote the health and recreation of all 
citizens; the Supreme Court of Mississippi has declared 
title to the pumped-up land in the abutting private land- 
owners ; the white public is invited to and freely does use 
the beach, while Negroes are excluded therefrom; this 
racially exclusionary policy is encouraged, supported and 
enforced by state and local governments, notwithstanding 
their contractual obligation to the United States to assure 
nondiscriminatory public use of the beach; for attempting 
to enjoy the beach equally with whites, petitioners, Negroes 
and white civil rights workers, were convicted of trespass. 
Under these circumstances, do petitioners’ convictions of­
fend the Equal Protection Clause of the Fourteenth Amend­
ment to the Constitution of the United States?



3

Constitutional and Statutory Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

This case also involves the following two statutes of the 
United States:

1) Act of August 13, 1946, Public Law 727, 79th Cong., 
2nd Sess., 60 Stat. 1056, Section I, codified with amend­
ments as 33 U. S. C. A. §426e (1965 Supp.):

That with the purpose of preventing damage to public 
property and promoting and encouraging the healthful 
recreation of the people, it is hereby declared to be 
the policy of the United States to assist in the construc­
tion, but not the maintenance, of works for the im­
provement and protection against erosion by waves 
and currents of the shores of the United States that 
are owned by States, municipalities, or other political 
subdivisions: Provided, That the Federal contribution 
toward the construction of protective works shall not 
in any ease exceed one-third of the total cost: Pro­
vided further, That where a political subdivision has 
heretofore erected a seawall to prevent erosion, by 
waves and currents, to a public highway considered by 
the Chief of Engineers sufficiently important to justify 
protection, Federal contribution toward the repairs of 
such wall and the protection thereof by the building 
of an artificial beach is authorized at not to exceed 
one-third of the original cost of such wall, and that 
investigations and studies hereinafter provided for are 
hereby authorized for such localities: Provided fur­
ther, That the plan of protection shall have been spe-



4

eifically adopted and authorized by Congress after 
investigation and study by the Beach Erosion Board 
under the provisions of section 2 of the River and 
Harbor Act approved July 3, 1930, as amended and 
supplemented.

2) Act of June 30, 1948, Public Law 858, 80th Cong., 2nd 
Sess., 62 Stat. 1172, Section 101:

Sec. 101. The following works of improvement of 
rivers and harbors and other waterways for naviga­
tion, flood control, and other purposes are hereby 
adopted and authorized to be prosecuted under the 
direction of the Secretary of the Army and supervision 
of the Chief of Engineers, in accordance with the plans 
and subject to the conditions recommended by the Chief 
of Engineers in the respective reports hereinafter 
designated:

Harrison County, Mississippi; Shore Protection; 
House Document Numbered 682, Eightieth Con­
gress; . . .

This case also involves the following three statutes of the 
State of Mississippi:

1) Miss. Code Ann., 1942, Rec., §8516.3, Section 2:

2. The board of supervisors be and the same is hereby 
given full power and authority to meet and do and 
grant any request of the United States Beach Erosion 
Board of the United States Army Engineers by and 
under public law 727, 79th congress, chapter 960, 2nd 
session, and to assure either or both the following:

(a) Assure maintenance of the sea wall and drainage 
facilities, and of the beach by artificial replenishment,



5

during the useful life of these works, as may be re­
quired to serve their intended purpose ;

(b) Provide, at the county’s own expense, all neces­
sary land, easements and rights-of-way;

(c) To hold and save the United States free from all 
claims for damages that may arise either before, dur­
ing or after prosecution of the work;

(d) To prevent, by ordinance, any water pollution 
that would endanger the health of the bathers;

(e) To assume perpetual ownership of any beach 
construction and its administration for public use only, 
and that the board of supervisors is given full power 
and authority to do any and all things necessary in and 
about the repair and reconstruction, or construction or 
maintenance of the sea wall and sloping beach adjacent 
thereto, and they are given such power to cooperate 
with the requirements of the United States govern­
ment to receive any grant or grants of money from 
congress or to contribute any grant or grants to the 
United States Army Engineers in and about this con­
struction and maintenance, and they are further given 
full power and authority to employ engineers, lawyers, 
or any other professional or technical help in and about 
the completion of this project. In the event the county 
engineer is selected to do any or all of said work, the 
board of supervisors is hereby authorized to pay and 
allow him such reasonable fees or salary which, in their 
opinion, is necessary, just and commensurate to the 
work done by him.

They are further given full power and authority to 
let, by competitive bids, any contract for the repair



6

of said wall, or for the installation and drainage, and 
for the construction of any additional section of wall, 
together with any artificial beach adjacent to said 
wall, or they may, in their discretion, negotiate a con­
tract for any and all construction or any part thereof 
for the construction, repair, reconstruction or addi­
tions thereto, or they may do any or all of said work 
under the direction of the county engineer or engineers 
employed by them and for which purpose they may 
employ all necessary labor, equipment and purchase 
necessary materials.

The intent and purpose of this act is to give unto 
the respective boards of supervisors the full power 
and authority to carry out all the provisions herein, 
and to act independently, jointly or severally with the 
United States government by and under public law 
727, 79th congress (Laws, 1948, ch. 334, §2).

2) Miss. Code Ann., 1942, Rec., §2409.7 (1964 Supp.):

§2409.7. Trespass—going into or upon, or remaining 
in or upon, buildings, premises or lands of 
another after being forbidden to do so.

1. If any person or persons shall without authority 
of law go into or upon or remain in or upon any 
building, premises or land of another, whether an 
individual, a corporation, partnership, or association, 
or any part, portion or area thereof, after having 
been forbidden to do so, either orally or in writing 
including any sign hereinafter mentioned, by any 
owner, or lessee, or custodian, or other authorized 
person, or after having been forbidden to do so by such 
sign or signs posted on, or in such building, premises or



7

land, or part, or portion, or area thereof, at a place 
or places where such sign or signs may be reasonably 
seen, such person or persons shall be guilty of a mis­
demeanor, and upon conviction thereof shall be pun­
ished by a fine of not more than five hundred dollars 
($500.00) or by confinement in the county jail not 
exceeding six (6) months, or by both such fine and 
imprisonment.

2. The provisions of this act are supplementary to 
the provisions of any other statute of this state.

3. If any paragraph, sentence or clause of this act 
shall be held to be unconstitutional or invalid, the same 
shall not affect any other part, portion or provision 
of this act, but such other part shall remain in full 
force and effect (Laws, 1960, ch. 246, §§1-3).

3) Miss. Code Ann., 1942, Rec., §4065.3:

§4065.3. Compliance with the principles of segrega­
tion of the races.

1. That the entire executive branch of the govern­
ment of the State of Mississippi, and of its subdivi­
sions, and all persons responsible thereto, including 
the governor, the lieutenant governor, the heads of 
state departments, sheriffs, boards of supervisors, 
constables, mayors, boards of aldermen and other gov­
erning officials of municipalities by whatever name 
known, chiefs of police, policemen, highway patrol­
men, all boards of county superintendents of educa­
tion, and all other persons falling within the executive 
branch of said state and local government in the State 
of Mississippi, whether specifically named herein or



8

not, as opposed and distinguished from members of 
the legislature and judicial branches of the government 
of said state, be and they and each of them, in their 
official capacity are hereby required, and they and each 
of them shall give full force and effect in the per­
formance of their official and political duties, to the 
Resolution of Interposition, Senate Concurrent Reso­
lution No. 125, adopted by the Legislature of the State 
of Mississippi on the 29th day of February, 1956, 
which Resolution of Interposition was adopted by 
virtue of and under authority of the reserved rights 
of the State of Mississippi, as guaranteed by the Tenth 
Amendment to the Constitution of the United States; 
and all of said members of the executive branch be and 
they are hereby directed to comply fully with the Con­
stitution of the State of Mississippi, the Statutes of 
the State of Mississippi, and said Resolution of Inter­
position, and are further directed and required to pro­
hibit, by any lawful, peaceful and constitutional means, 
the implementation of or the compliance with the In­
tegration Decisions of the United States Supreme 
Court of May 17, 1954 (347 U. S. 483, 74 S. Ct. 686, 98 
L. ed. 873) and of May 31, 1955 (349 U. S. 294, 75 S. Ct. 
753, 99 L. ed. 1083), and to prohibit by any lawful, 
peaceful, and constitutional means, the causing of a 
mixing or integration of the white and Negro races 
in public schools, public parks, public waiting rooms, 
public places of amusement, recreation or assembly 
in this state, by any branch of the federal govern­
ment, any person employed by the federal government, 
any commission, board or agency of the federal gov­
ernment, or any subdivision of the federal government, 
and to prohibit, by any lawful, peaceful and constitu­



9

tional means, the implementation of any orders, rules 
or regulations of any board, commission or agency of 
the federal government, based on the supposed au­
thority of said Integration Decisions, to cause a mix­
ing or integration of the white and Negro races in 
public schools, public parks, public waiting rooms, 
public places of amusement, recreation or assembly 
in this state.

2. The prohibitions and mandates of this act are 
directed to the aforesaid executive branch of the gov­
ernment of the State of Mississippi, all aforesaid sub­
divisions, boards, and all individuals thereof in their 
official capacity only. Compliance with said prohibi­
tions and mandates of this act by all of aforesaid 
executive officials shall be and is a full and complete 
defense to any suit whatsoever in law or equity, or 
of a civil or criminal nature which may hereafter be 
brought against the aforesaid executive officers, offi­
cials, agents or employees of the executive branch of 
State Government of Mississippi by any person, real 
or corporate, the State of Mississippi or any other 
state or by the federal government of the United 
States, any commission, agency, subdivision or em­
ployee thereof (Laws, 1956, ch. 254, 2).



10

Statement

This case presents the issue whether Negroes may be 
punished by the State of Mississippi for attempting to 
enjoy equally with whites one of the largest man-made 
beaches in the world, a gleaming strip of sand, 24 miles 
in length, along the coast of the State of Mississippi—con­
structed and maintained with federal, state and local funds, 
pursuant to federal, state and local programs and policies.1 
The state and local governments derive substantial bene­
fits from the beach, for it serves as a nation-wide attraction 
for numerous tourists arriving on the major interstate 
highway which runs parallel to it and separates it from the 
homes of the residents.2

1 The evidence of governmental involvement in the beach was 
not before the jury that convicted petitioners of trespass, because 
the trial judge excluded it (R. 586, 593). The proffered evidence 
included a resolution by the Board of Supervisors of Harrison 
County declaring its intention to borrow one million five hundred 
thousand dollars for the construction of the beach (Exhibit 1, R. 
585-91) and the contract between the United States and the Board 
of Supervisors of Harrison County, pursuant to which the federal 
government donated $1,133,000 (R, 595) for construction of the 
beach and Harrison County pledged to “ fajssure perpetual public 
use of the beach and its administration for public use only” (E. 608) 
(Exhibit 2, R. 594-611).

The extent of governmental involvement in the beach is discussed 
in detail under “Reason for Granting the Writ.”

2 The report of the Chief of Engineers to the Department of the 
Army, set forth in the Appendix, pp. 2a-4a, infra, pursuant to which 
the federal money was allocated, stated (3a-4a) :

As indicated, the project would protect U. S. Highway 90, a 
major public thoroughfare, and the 24 mile beach, generally 
300 feet wide above mean sea level, and would afford a large- 
scale facility for the healthful recreation of the public at large. 
In my opinion, the direct and indirect benefits justify the 
indicated Federal contribution (House Document 682, 80th 
Cong. 2nd Sess., p. 4).



11

As a tourist attraction, the beach has always been rou­
tinely used by the white public (R. 336-37, 387-88, 480-81, 
518-19, 537, 702); Negroes have traditionally been rigor­
ously excluded (R. 285-86, 398).3

The State of Mississippi has maintained, and continues 
to maintain, that Negroes may be excluded from the 
beach—notwithstanding massive governmental involve­
ment in the beach through monies, programs and policies, 
and notwithstanding the fact that there would be no beach 
absent this involvement—because the State has never con­
demned the land and the Supreme Court of Mississippi has 
declared title to the beach in fee simple in the abutting 
private landowners. Harrison County v. Guice, 244 Miss. 
95, 140 So. 2d 838 (1962).

The United States has brought suit in the United States 
District Court for the Southern District of Mississippi, 
seeking to enforce the obligation assumed by Harrison 
County (see note 1, supra) to take title to the beach and to 
“ [ajssure perpetual public use of the beach and its ad­
ministration for public use only” (R. 608) (contract be­
tween the United States and Harrison County, entered into 
January 23, 1951, Exhibit 2, R. 594-611). United States v. 
Harrison County, S. D. Miss., No. 2262. Although the case, 
filed in I960,4 has been fully tried, it has not yet been 
decided by the District Court.

3 The trial judge attempted to prevent counsel for appellants 
from proving that petitioners’ arrests were racially motivated (“ The 
integration issue is not involved in this lawsuit,”  R. 418-20, 516-17). 
Nonetheless, the record as a whole leaves no room for doubt, see 
citations in text, passim.

4 Suit was filed following an earlier incident involving expulsion 
of Negroes from the beach.



12

Prior to June, 1963, when this ease arose, Negroes un­
successfully5 tried to use the beach, and in June, 1963, after 
3 years of fruitless litigation, they tried again (R. 336, 386, 
408, 623-24). For several weeks, officials of the City of 
Biloxi and Harrison County attempted to dissuade them. 
Meetings were held between these officials and the leader 
of the protesters, petitioner Mason; local newspapers and 
radio kept whites informed about the “ invasion” ; and 
police were placed on the alert (R. 297, 302, 305-08, 379-86, 
389-92, 414-17, 473, 485-87, 624-31, 704A).

Finally, on Sunday, June 23, 1963, in the early after­
noon, the 29 petitioners herein,6 three of whom are white 
(R. 515), set foot upon a portion of West Beach in Biloxi 
(R. 506-07).

An angry crowd of approximately 2,000 whites gathered 
along the highway (R. 464, 574, 618); approximately 50 
police officers arrived on the scene (R. 614) ;7 an agent of 
the putative titleholder of the beach property appeared

5 Some Negroes were arrested and others were beaten by whites 
(R. 704B).

6 The petitioners are: Gilbert R. Mason, William Adams, Jr., 
John M. Aregood, Charley Avery, Margaret Beines, James L. Black, 
Harold Boglin, Myrtle Bridges, Eugene Cannon, Harry E. Cannon, 
Mattie Cannon, Charles Carvell, Charles R. Davis, Samuel Ed­
wards, Rehofus Esters, Roger Gene Gallagher, Ernest A. Jackson, 
E. E. Jackson, Cornelius D. Kemp, Robert C. Louis, Phyllis M. 
Love, Frances A. Magee, Arlena Massey, Barbara Mosley, Gloria 
S. Powell, Alvin Sehneckenberg, George Watters, Marshall White, 
Estes Woulard.

7 Eight agents of the Federal Bureau of Investigation were pres­
ent (R. 498-99). The large contingent of law enforcement officers 
was, however, unable to prevent petitioners’ cars from being burned 
or overturned (R. 615-17) or to prevent the police van in which 
petitioners were driven to jail from being tilted by the mob, caus­
ing minor injuries to some of the petitioners (R. 633-34, 652). No 
arrests were made (R. 610-11).



13

(R. 447)8 and ordered petitioners to vacate the property 
(R. 448, 468),9 which they failed to do (R. 449); the 
agent executed a charging affidavit (R. 450); and the police 
arrested petitioners (R. 450). None of the white members 
of the public enjoying the beach were arrested (R. 480, 
524-26).

Petitioners were charged with trespass in violation of 
Miss. Code Ann., 1942, Rec. §2409.7, set forth, pp. 6-7, 
supra. The criminal affidavits, as amended, charged that 
petitioners “ did wilfully and unlawfully, without authority 
of law, remain upon land of another, to wit, Mrs. James 
M. Parker, on West Beach in Biloxi, Mississippi, after 
having been forbidden orally to do so by the duly author­
ized agent of said property owner authorized to control 
said property, in violation of Section 2409.7 of the Missis­
sippi Code of 1942, annotated, made an ordinance of the 
City of Biloxi and in violation of Ordinance 12-24, Code of 
Ordinances of the City of Biloxi” (R. 2-146).

June 28, 1963, petitioners were tried in the Police Justice 
Court in the City of Biloxi, found guilty and sentenced to 
30 days imprisonment and $100.00 fine (R. 6-146).10

8 The City proved private title to the beach property entered 
upon by petitioners, conformably to Harrison County v. Guice, 
supra (R. 426E-426H, 452).

9 Petitioner Gallagher testified he did not hear this warning 
above the din of the hostile crowd (R. 510-14, 517, 577). Petitioner 
Mason testified that he heard the warning but was given insufficient 
time to leave the beach (R. 619, 621-22, 697-99). These petitioners 
further testified that they did not intend to remain on premises 
which they were ordered to vacate (R. 521, 680) and that they had 
in fact left another part of the beach earlier that day when ordered 
to do so (R. 527, 613).

10 Some of the sentences of imprisonment were suspended and 
some of the fines were suspended as to $50.00 thereof.

The cases of an approximately equal number of juveniles who 
accompanied the adult petitioners were disposed of in juvenile 
court proceedings.



14

On November 20-22, 1963, petitioners were tried de novo 
in the County Court of Harrison County, again convicted 
and sentenced to 30 days imprisonment (suspended upon 
good behavior) and $100.00 fine (R. 187-190).

Petitioners appealed to the Circuit Court of Harrison 
County which, on February 22, 1965, affirmed their convic­
tions and upheld their fines, but set aside their sentences 
of imprisonment (R. 718).

Petitioners thereupon appealed to the Supreme Court of 
Mississippi, which on March 21, 1966, affirmed without 
opinion (184 So. 2d 113) (R. 734). A suggestion of error 
was timely filed and overruled by the Court on April 11, 
1966 (R. 735).

How the Federal Questions Were 
Raised and Decided Below

In the County Court of Harrison County, petitioners 
moved for a directed verdict on the grounds that their 
convictions would deprive them of rights under the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States and 
would, in particular, deprive them “ of the use of the public 
beaches of the City of Biloxi, supported by public funds 
of the City of Biloxi and by federal grant, all in violation 
of the equal protection clause of the Fourteenth Amend­
ment . . . ” (R. 163). Petitioners’ motion was overruled by 
the trial judge (R. 504).

Petitioners’ attempt to raise the issue of the public 
nature of the beach was frustrated by the trial judge’s ex­
clusion of evidence showing massive governmental involve­
ment in the beach (see note 1, supra) and by the trial



15

judge’s refusal to give petitioners’ proposed instructions 
to the jury concerning this governmental involvement 
(R. 180-185).

After trial, petitioners filed a motion for a new trial, as­
signing roughly the same grounds as in the motion for a 
directed verdict (R. 191-92). This motion was also over­
ruled by the trial judge (R. 193).

In the Circuit Court of Harrison County and again in 
the Supreme Court of Mississippi petitioners preserved 
their claims under the Fourteenth Amendment (R. 728-32).

Reason for Granting the Writ

The Decision Below Approves Enforcement of a State- 
Supported Policy of Racial Discrimination in Facilities 
Which Are Significantly Impressed With Federal, State 
and Local Financial Contributions, Programs and Poli­
cies and Conflicts With Decisions of This Court.

Petitioners’ convictions for trespassing upon a portion 
of West Beach in Biloxi offend the Equal Protection Clause 
of the Fourteenth Amendment because the beach is sig­
nificantly involved with the federal11 and state governments 
and the racially exclusionary policy enforced thereon is 
significantly tied to the State of Mississippi.

It is no answer to say that private choice is involved in 
the racially exclusionary policy and that title to the prop­

11 As a technical matter, the Due Process Clause of the Fifth 
Amendment has also been violated, since petitioners’ right to equal 
enjoyment of facilities in which the federal government is sig­
nificantly involved has been abridged. See, e.g., Simkins v. Moses 
H. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, 
denied, 376 U. S. 938 (1964).



16

erty apparently resides in private hands. Private conduct 
abridging individual rights may offend the Equal Protec­
tion Clause if “ to some significant extent the State in any 
of its manifestations has been found to have become in­
volved in it” (Burton v. Wilmington Parking Authority, 
365 U. S. 715, 722 (1961) ).

Numerous decisions have recognized that a privately- 
owned facility may be public for purposes of the Four­
teenth Amendment. Marsh v. Alabama, 326 II. S. 501 
(1946); Simkins v. Moses 11. Cone Memorial Hospital, 323 
F. 2d 929 (4th Cir. 1963), cert, denied, 376 U. S. 938 (1964); 
Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964); Smith v. 
Holiday Inns of America, Inc., 336 F. 2d 630 (6tli Cir. 
1964). “ [B ]y sifting facts and weighing circumstances” , 
Burton v. Wilmington Parking Authority, 365 U. S. at 722, 
it may be concluded “ that the public character of [a] park 
requires that it be treated as a public institution subject 
to the command of the Fourteenth Amendment, regardless 
of who . . . has title under state law” (Evans v. Newton, 
382 U. S. 296, 302 (1966)).

The beach involved in this case has become so entwined 
with governmental programs and policies and taken on 
such a governmental character as to preclude basing 
criminal convictions on failure to obey purely racial limita­
tions on its use.

Federal involvement in the beach has been sustained and 
massive. Public Law 727, set forth, supra, pp. 3-4, enacted 
by Congress in 1946, set forth the basic federal interest in 
beach construction and restoration as that of “ preventing 
damage to public property and promoting and encouraging 
the healthful recreation of the people.” Pursuant to Public 
Law 727, studies of various beaches were made by the



17

Beach. Erosion Board and, pursuant to these studies, Con­
gress, on June 30, 1948, enacted Public Law 858, set forth, 
supra, p. 4, authorizing the construction of the Harri­
son County Beach involved in this case. This legislation 
expressly incorporated by reference the report of the Chief 
of Engineers, United States Army, in House Document 
No. 682, 80th Cong., 2nd Sess., set forth, Appendix, pp. 2a- 
4a, infra, prescribing the conditions under which the beach 
work was to be prosecuted. The two conditions of critical 
importance here were that “ the State of Mississippi or 
local governmental agency . . . provide all necessary lands, 
easements, and rights-of-way for accomplishment of the 
work . . . and . . . give satisfactory assurances that they 
will . . . [a]ssure perpetual public ownership of the beach 
and its administration for public use only” (House Docu­
ment No. 682, p. 4) (4a).

Pursuant to this legislation, on January 23, 1951, the 
United States and Harrison County entered into an agree­
ment for the prosecution of the shore protection work. 
Conformably to the conditions in the enabling legislation, 
Harrison County pledged to “ [p]rovi.de at its own expense 
all necessary lands, easements and rights-of-way” (R. 597) 
and to “ [a]ssure perpetual public use of the beach and its 
administration for public use only” (R. 608).12

The federal government paid $1,133,000 for the repair 
of the seawall and the construction of the Harrison County 
Beach.13

12 Six years ago suit was brought by the United States to specifi­
cally enforce these provisions. See text at note 4, supra.

The contract regulated in detail the prosecution of the work, in­
cluding, e.g., insurance (R. 598), inspection (R. 598), labor (R. 
601) and materials (R. 607).

13 This evidence of federal participation was not before the jury 
which convicted petitioners, because the trial judge excluded all 
attempts to show the public nature of the beach (R. 586, 593).



18

State and local governments have also been deeply in­
volved in the beach. On March 31, 1948, the Mississippi 
Legislature enacted Chapter 334, now codified as Miss. 
Code Ann., 1942, Ree. §8516.3, §2 of which is set forth, 
supra, pp. 4-6, enabling the Board of Supervisors of 
Harrison County to meet the federal conditions, i.e., to 
“ [p]rovide, at the county’s own expense, all necessary land, 
easements and rights-of-way” and “ [t]o assume perpetual 
ownership of any beach construction and its administration 
for public use only.” In §1 of Chapter 334, the Mississippi 
Legislature authorized Harrison County to borrow funds 
for the beach work in an amount up to $1,500,000. Pur­
suant to this enabling legislation, in October, 1948, the 
Board of Supervisors of Harrison County declared its in­
tention to issue bonds in the amount of $1,500,000 (R. 587- 
91). Subsequently this money was raised and the work 
prosecuted to completion.14

Today, conformably to its contractual obligation with 
the federal government (R, 609), Harrison County main­
tains the beach in a condition worthy of a national tourist 
attraction (R. 623).

14 As with the evidence of federal involvement, this evidence of 
state involvement was not before the jury which convicted peti­
tioners (R. 586). However, the fact that this work was in fact 
completed is documented in the preamble to Chapter 214 of Missis­
sippi Laws 1952, codified as Miss. Code Ann., 1942, Rec. §8516.4, 
authorizing Harrison County to raise additional funds “ to finish 
the improvements and work regarding seawall, hydraulic fill, drain­
age and road beds over the entire length of the county,” and recit­
ing that Harrison County had completed “extensive repair to its 
seawall and extensive work in extending and installing an adequate 
drainage system behind said seawall, and extensive dredging and 
placing hydraulic fill in front of said seawall in order that same 
might be adequately protected.”



19

In addition to receiving public subvention, the beach 
also serves a public function. Equally applicable to it is 
the conclusion reached by this Court as to the park in 
Evans v. Newton, 382 U. S. at 301: “ The service rendered 
. . . is municipal in nature. It is open to every white per­
son, there being no selective element other than race.” 
Numerous decisions of this Court have recognized that 
“ [m]ass recreation through the use of parks is plainly in 
the public domain” (Evans v. Newton, 382 U. S. at 302). 
City of New Orleans v. Barthe, 376 U. S. 189 (1964); 
Watson v. Memphis, 373 U. S. 526 (1963); Wright v. 
Georgia, 373 U. S. 284 (1963); New Orleans Park Asso­
ciation v. Detiege, 358 U. S. 54 (1958); Mayor and City 
Council of Baltimore v. Dawson, 350 U. S. 877 (1955); 
Holmes v. City of Atlanta, 350 U. S. 879 (1955).

Furthermore, consistent with Shelley v. Kraemer, 334 
U. S. 1 (1948); and Barrows v. Jackson, 346 TI. S. 249 
(1953), “ state courts that aid private parties to perform 
[a] public function on a segregated basis implicate the 
State in conduct proscribed by the Fourteenth Amend­
ment” (Evans v. Newton, 382 U. S. at 302). “ [T ]o the 
extent that the State undertakes an obligation to enforce 
a private policy of racial segregation, the State is charged 
with racial discrimination and violates the Fourteenth 
Amendment” (Griffin v. Maryland, 378 U. S. 130, 136 
(1964)).

But the elements of state action in this case do not stop 
here. The state and local governments are involved in 
protecting the beach from Negroes as well as in protecting 
it from tides and litter. Although it is a matter of national 
notice that the State of Mississippi and Harrison County 
entice a brisk tourist traffic to the beach, it is also a mat­



20

ter of public record that they consider the beach off-limits 
to Negroes and discourage as emphatically as they know 
how its use by Negroes. This policy of the State of Mis­
sissippi is reflected in Miss. Code Ann., Ree. 1942, §4065.3, 
set forth, supra, pp. 7-9, which requires county and city 
officials “ to prohibit by any lawful, peaceful and constitu­
tional means, the causing of a mixing or integration of 
the white and Negro races in . . . public places of amuse­
ment, recreation or assembly in this state.” This legisla­
tive exhortation has been well heeded by local officials, 
including the Mayor, District Attorney and Chief of Police, 
who have used all the powers of persuasion at their com­
mand (R. 641-42, 644-47, 656-59, 692-93) and, when persua­
sion failed, the arrest and prosecution of petitioners, to 
discourage Negroes from using the beach. Their purpose 
in this matter has been largely accomplished, for the 
arrests and prosecutions of petitioners have largely served 
to deter further attempts in the past three years to chal­
lenge the racially exclusionary policy.

Thus, §4065.3 “ depart[s] from a policy of strict neu­
trality in matters of private discrimination by enlisting 
the State’s assistance only in aid of racial discrimination 
and . . . involve [s] the State in the private choice as to 
convert the infected private discrimination into state ac­
tion, subject to the Fourteenth Amendment. Cf. Robinson 
v. Florida, 378 U. S. 153; Lombard v. Louisiana, 373 U. S. 
267; Peterson v. City of Greenville, 373 U. S. 244” (Evans 
v. Newton, 382 U. S. 296, 306 (1966) (White, J. concur­
ring)).

Harrison County and the City of Biloxi may hardly main­
tain that they have acted in a neutral fashion in enforcing 
the exclusion of Negroes from the beach. Obligated by



21

contract with the United States to assure nondiscrimina- 
tory public use of the beach and commanded by the State 
of Mississippi to enforce racial discrimination wherever 
possible, they have - disregarded the paramount federal 
obligation and heeded instead the state legislative com­
mand. By subordinating the national interest in nondis­
crimination to the state interest in discrimination, they 
have struck a balance inconsistent with the Constitution 
of the United States.

A  final word should be said about the record made below. 
Because the trial judge excluded much evidence tending 
to show the public nature of the beach (see notes 12 and 
13, supra), reversal for a new trial would plainly be re­
quired under Carter v. Texas, 177 U. S. 442, 448-49 (1900); 
and Coleman v. Alabama, 377 U. S. 129 (1964) if the 
record of governmental involvement were thought to be in­
sufficient.15 However, because the refused exhibits are be­
fore the Court and because much of the federal and state 
involvement is a matter of public record, petitioners sub­
mit that outright reversal is warranted.

15 The trial judge also prevented counsel for petitioners from 
making certain offers of proof (R. 535-36 ; 637-38).



22

CONCLUSION

For the foregoing reasons, the petition for writ of 
certiorari should be granted.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

R. Jess B rown

125% North Farish Street 
Jackson, Mississippi 39201

Attorneys for Petitioners



A P P E N D I X



la

Judgment o f  Supreme Court of Mississippi

Monday, March 21, 1966, Court Sitting 

No. 43,705

Gilbert Mason, et al.

vs.

City of B iloxi.

This cause having been submitted at a former day of 
this Term on the Record herein from the Circuit Court 
Harrison County and this Court having sufficiently ex­
amined and considered the same and being of the opinion 
that there is no error therein doth order and adjudge that 
the judgment of said Circuit Court rendered in this cause 
on the 22nd day of February 1965 be and the same is 
hereby affirmed. It is further ordered and adjudged that 
the City of Biloxi do have and recover of and from the 
appellants and Rev. Robert Nance and J. 0. Tate D.D.S., 
sureties on the appeal bond herein, all of the costs of this 
appeal to be taxed, for which let proper process issue.

Minute Book “BN” Page 528



2a

REPORT OF THE CHIEF OF ENGINEERS, 
UNITED STATES ARMY

Department op the A rmy,
Ofpice op the Chief of E ngineers,

Washington, March 8, 1948.

Subject: Beach erosion control study of Harrison County, 
Miss.

To: The Secretary of the Army.

1. I submit for transmission to Congress a report with 
accompanying papers on a beach erosion control study of 
Harrison County, Miss., made by the Corps of Engineers 
in cooperation with the Board of Supervisors of Harrison 
County under the provisions of Section 2 of the River and 
Harbor Act approved July 3, 1930, as amended and sup­
plemented.

2. After full consideration of the reports secured from 
the district and division engineers, the Beach Erosion 
Board recommends that a project be adopted by the United 
States authorizing Federal participation in the amount of 
$1,133,000 toward the repair of the Harrison County sea 
wall and its protection by the construction of a beach from 
Biloxi Lighthouse to Henderson Point near Pass Christian, 
Miss., with attendant drainage facilities, subject to certain 
conditions.

3. The proposed 24-mile beach between Biloxi and Pass 
Christian (Henderson Point) would protect the existing 
sea wall built at a reported first cost of $3,400,000 during

House Document No. 682 , 80th Cong., 2nd Sess.



3a

1925-28 by Harrison County. After the wall was con­
structed natural forces including hurricanes eroded the 
original protective beach and severely damaged the struc­
ture which is now subject to direct wave action including 
undermining at normal stages of tide. The wall, extending 
essentially throughout this 24-mile section, and the fore­
shore are publicly owned. That wall protects IT. S. High­
way 90, located generally about 100 feet landward of the 
wall. This road is the principal highway along the Gulf 
coast between Florida and Louisiana and the most heavily 
traveled road in Mississippi. In view thereof it is my 
opinion that the importance of this highway warrants ap­
plication of Federal aid pursuant to the policy enunciated 
in Public Law 727, Seventy-ninth Congress, approved Au­
gust 13,1946, section I of which provides:

#  #  *  #  *

4. Under the Federal-aid project proposed by the Beach 
Erosion Board the United States would finance the pro­
posed beach improvement at an estimated cost of $856,000 
and participate in the financing of needed repairs to the 
sea wall at an estimated cost of $277,000, a limiting total 
of $1,133,000 which is one-third of the original construc­
tion cost of the sea wall. Local interests would, among 
other things, effect remaining necessary sea-wall repairs, 
alter the drainage system, maintain the new beach and 
attendant facilities, remedy water pollution that would 
endanger the public health, and administer the beach for 
public use only. The cost to local interests includes an 
estimated $1,182,000 for drainage system alterations and 
an undetermined amount for sea-wall repairs. As indi­
cated, the project would protect U. S. Highway 90, a major 
public thoroughfare, and the 24-mile beach, generally 300 
feet wide above mean sea level, and would afford a large-

House Document No. 682, 80th Cong., 2nd Sess.



4a

scale facility for the healthful recreation of the public at 
large. In my opinion the direct and indirect benefits jus­
tify the indicated Federal contribution.

5. Accordingly, after due consideration of these re­
ports, I concur generally in the views and recommenda­
tions of the Board. I recommend adoption of a project 
by the United States authorizing Federal participation of 
$1,133,000 toward the repair of the Harrison County sea 
wall and its protection by the construction of a beach from 
Biloxi Lighthouse to Henderson Point near Pass Christian, 
Miss., in substantial accordance with the plans outlined 
by the Beach Erosion Board, provided the State of Mis­
sissippi or local governmental agency: (1) adopt the afore­
mentioned plan of improvement including repairs and 
alterations; (2) submit for approval by the Chief of Engi­
neers detailed plans and specifications and arrangements 
for prosecuting the entire improvement prior to the com­
mencement of such work; (3) provide all necessary lands, 
easements, and rights-of-way for accomplishment of the 
work; and provided further that responsible State or 
local interests give satisfactory assurances that they will: 
(a) maintain the sea wall and drainage facilities, and the 
beach by artificial replenishment, during the useful life 
of these works as may be required to serve their intended 
purpose; (b) hold and save the United States free from 
all claims for damages that may arise either before, dur­
ing, or after prosecution of work; (e) remedy water pollu­
tion that would endanger public health; and (d) assure 
perpetual public ownership of the beach and its adminis­
tration for public use only.

R. A. W heeler, 
Lieutenant General, 

Chief of Engineers.

House Document No. 682, 80th Cong., 2nd Sess.



38